Costa Questions II

The question as to whether the illegal buildings in Marbella will have to be demolished has become a great cause for debate among experts. Last week the Junta de Andalucía announced it would call for the Andalusian High Court (TSJA) to order the demolition of seven illegal developments, affecting some 334 homes, although they could find a number of obstacles blocking their way. One of these is the so-called “principio de fe pública registral”, which, according to the experts consulted, would support the case of the owners of these properties. This “public good faith” principle establishes that whoever acquires a property trusting in the information provided by the property register must maintain their acquisition.



''Property Registrars claim that each owner would have to be taken to court and prove that they were unaware that the licence for their homes was not valid''

The head of the official School of Registrars of Property, Personal and Mercantile Property of Western Andalucía, Manuel Martín, considered it “difficult” to execute the demolition order for all the illegal properties in Marbella (affecting in the region of 5,000 properties built on land reserved for public amenities) as, if they are inscribed in the Property Register they could be protected by this principle.

Manuel Martín specified that it will be the “magistrates and the judges who decide” what to do, but he believes that they will not be able to demolish certain buildings without taking each and every one of the owners to court to prove that “they knew that the planning permission was not valid”. The property registrars, who at the moment only require the building licence to register a property, are planning a collaboration agreement with the Public Works Department at the Junta de Andalucía in order to combat planning offences. The Junta will provide them with detailed maps of the region so that they know exactly where construction is permitted and where it is not, and if they have doubts about a licence they can send it to the regional government for inspection.

Case by case

Meanwhile the head of the Malaga School of Lawyers, Manuel Camas, told SUR that the Ley Hipotecaria (Mortgage Law) would protect the rights of proprietors who acquire a property on good faith, trusting in the information they receive from the property register about the home they are buying. “We would have to study each individual case,” he adds, “although it doesn’t seem possible for them to knock down a building that is inhabited because the law protects the residents”.

Malaga’s Planning and Environment Prosecution Office is also aware of the complexity of the demolition of illegal buildings, especially when they are already lived in and the buyers are not responsible for the illegality. The Public Prosecution Department’s position is to study each case, one by one, adopting a more “restrictive” interpretation of the Penal Code which does envisage the possibility of demolishing illegal housing in article 319.

This is a national policy that is being adopted by all the Prosecution Departments in cases of planning offences, however they are coming across one major problem: judges are reluctant to apply the demolition measure in their sentences, not just because of the damage this would cause to proprietors who bought the properties in good faith, but also the huge cost of the compensation payable to those who have lost their homes through no fault of their own.

The complex situation was also highlighted by Rafael Duarte, currently running the Planning Department for the caretaking committee at Marbella Town Hall. He agreed that the situation was a “complex” one which would have a “substantial social cost”. He pointed out that demolition would require the firm support of both the courts and the local authority, “if one side drops out, the measure will not survive”, he added. The caretaking committee is yet to state its official position on the matter.

 

 

 

Article presented by Diario Sur